Exhibit 10.10
CONSULTING AGREEMENT
This Agreement (the "Agreement") is entered into as of October 1, 1996, by
and between Xxxxxx Xxxxx, M.D. ("Consultant") and PathoGenesis Corporation (the
"Company"). The Company and Consultant are sometimes collectively referred to
herein as the "Parties" and individually as a "Party".
In consideration of the mutual covenants and agreements set forth herein,
the Parties agree as follows:
1. Consulting Services. The Company engages Consultant as an independent
contractor, and not as an employee, to render consulting services to the Company
as hereinafter provided, and Consultant hereby accepts such engagement, for a
period commencing on October 1, 1996 and terminating on September 30, 2000. The
Parties agree that Consultant will not have any authority to bind or act on
behalf of the Company. During this period, Consultant shall render such
consulting and advisory services in connection with the Company's business as
the Company from time to time requests, which services shall include, but not be
limited to, those relating to membership on the Company's Science Advisory
Board. Consultant shall perform such services as and where requested by Company
and when agreed to mutually by Company and Consultant.
2. Compensation. In consideration of Consultant's services set forth in
paragraph 1 above, the Company will pay to Consultant $50,000 per year, such
payment to be made in quarterly installments. In addition, the Company will
grant Consultant an option, under the Company's 1992 Stock Option Plan, to
purchase 10,000 shares of the Company's common stock at an exercise price
determined by the Company at the time of grant. A copy of the plan is attached.
The Company shall also promptly reimburse Consultant for reasonable travel
expenses actually incurred by Consultant in connection with such services.
3. Termination. This Consulting Agreement shall terminate on September
30, 2000 unless either the Company or Consultant delivers written notice to the
other Party, indicating such Party's intention to terminate this Consulting
Agreement. This Consulting Agreement shall then terminate 30 days after the
delivery of such termination notice.
1.
4. Confidential Information. Consultant acknowledges that the
information, observations and data relating to the business of the Company and
its respective affiliates which Consultant has obtained as a consultant of the
Company or will obtain during the course of Consultant's association with the
Company and its affiliates and Consultant's performance under this Agreement are
the property of the Company. Consultant agrees that Consultant will not use
property of the Company. Consultant agrees that Consultant will not use for
Consultant's own purposes or disclose to any third party any of such
information, observations or data without the prior written consent of A. Xxxxx
Xxxxxxxxxx, M.D., Senior Vice President of the Company, unless and to the extent
that the aforementioned matters become generally known to and available for use
by the public other than as a result of Consultant's acts or omissions to act.
The disclosure of any of such information or data in a publication, such as a
patent, shall not alter Consultant's obligations under this paragraph with
respect to any information, observations or data not included in such
publication.
Notwithstanding any other provision hereof, Consultant shall provide the
Company with prompt notice of any judicial, administrative, governmental or
other order, request or demand to disclose any of such information, observations
or data.
5. Intellectual Property. In the event that Consultant as part of
Consultant's activities on behalf of, or pursuant to any agreement with, the
Company generates or contributes to any invention, design, new development,
device, product, method or process (whether or not patentable or reduced to
practice) (collectively, "Intellectual Property"), Consultant acknowledges that
such Intellectual Property is the exclusive property of the Company and hereby
assigns all right, title and interest in and to such Intellectual Property to
the Company. Consultant will promptly and fully disclose all Intellectual
Property to the Company and will cooperate with the Company to protect the
Company's interests in and rights to such Intellectual Property (including,
without limitation, providing reasonable assistance in securing patent
protection and executing all documents as reasonably requested by the Company).
6. Tax Returns. Consultant agrees that Consultant will file all tax
returns and reports required to be filed by Consultant on the basis that
Consultant is an independent contractor, rather than an employee, as defined in
Treasury Regulation SS.31.3121(d) - 1(c) (2). Further, Consultant agrees that
Consultant will indemnify the Company for the amount of any employment taxes
paid by the Company as the result
2.
of the Company not withholding employment taxes from the Consulting Payment. The
Consultant's tax identification or social security number is 00-0000000.
7. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Company and its affiliates, successors and assigns and
shall be binding upon and inure to the benefit of Consultant and Consultant's
legal representatives and assigns; provided that in no event shall Consultant's
obligations to perform future services for the Company be delegated or
transferred by Consultant without the prior written consent of the Company
(which consent may be withheld in its sole discretion). The Company may assign
or transfer its rights hereunder to any of its affiliates or to a successor
corporation in the event of merger, consolidation or transfer or sale of all or
substantially all of the assets of the Company.
8. Modification of Waiver. No amendment, modification or waiver of this
Agreement shall be binding or effective for any purpose unless it is made in
writing signed by the Party against who enforcement of such amendment,
modification or waiver is sought. No course of dealing between the Parties to
this Agreement shall be deemed to affect or to modify, amend or discharge any
provision or term of this Agreement. No delay on the part of the Company or
Consultant in the exercise of any of their respective rights or remedies shall
operate as a waiver thereof, and no single or partial exercise by the Company or
Consultant of any such right or remedy shall preclude other or further exercises
thereof. A waiver of right or remedy on any one occasion shall not be construed
as a bar to or waiver of any such right or remedy on any other occasion.
9. Governing Law. This Agreement shall in all respects be interpreted,
enforced, governed by and construed under the laws of the State of Illinois,
excluding that body of law applicable to choice of law.
10. Severability. Whenever possible each provision and term of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or term of this Agreement shall be held to
be prohibited by or invalid under such applicable law, then such provision or
term shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this Agreement.
3.
11. No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the Parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any Party.
12. Consultant's Representations. Consultant represents and warrants to
the Company that Consultant's execution and delivery of this Agreement does not
conflict with, or result in the breach of or violation of, any other agreement,
order, judgment or decree to which Consultant is bound.
13. Notice. Any notice required or permitted hereunder shall be given in
writing and mailed (by certified or registered mail), telecopied (confirmed by
certified or registered mail), cabled or personally delivered to the other Party
hereto at Party's address or telecopy number shown below:
If to the Company:
PathoGenesis Corporation
000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: A. Xxxxx Xxxxxxxxxx, M.D., Senior Vice President
Telecopy: (000) 000-0000
If to Consultant:
Xxxxxx Xxxxx, M.D.
Department of Molecular Microbiology
and Immunology
University of Missouri
X-000, Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
or at such other address or telecopy number as such Party may designate by ten
days advance written notice to the other Party.
14. Captions. The captions used in this Agreement are for convenience of
reference only and do not constitute a part of this Agreement and will not be
deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement will be enforced and construed
as if no caption had been used in this Agreement.
4.
15. Counterparts. This Agreement may be executed in counterparts, any one
of which need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Consulting Agreement
as of the date first above written.
PATHOGENESIS CORPORATION
/s/A. Xxxxx Xxxxxxxxxx, M.D.
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A. Xxxxx Xxxxxxxxxx, M.D.
Senior Vice President
CONSULTANT
/s/Xxxxxx Xxxxx, M.D.
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Xxxxxx Xxxxx, M.D.
1 Oct 96
5.
